OPEN RECORDS DECISION NO. 582
December 21, 1990
Re: Whether documents relating to a police department's investigation of a rapid
transit department are exempted from disclosure under article 6252-17a, V.T.C.S., the
Open Records Act (RQ-1932)
Dr. Kenneth Beasley
Chief Administrative Officer
City of El Paso
Two Civic Center Plaza
El Paso, Texas 79901-1196
Dear Dr. Beasley:
You have received a request for access to records pertaining to an investigation
conducted by the El Paso Police Department of the city's mass transit department. You
ask whether the requested information is subject to required public disclosure under the
Texas Open Records Act, article 6252-17a, V.T.C.S.
We have considered the exceptions you claimed, specifically sections 3(a)(1),
3(a)(3), 3(a)(8), and 3(a)(11), and have reviewed the documents at issue. The documents
submitted for our inspection total 51 pages and include information from what appear to
be two investigations. One investigation [hereinafter, the "first investigation"] concerns a
certain city employee. With respect to this first investigation the information submitted
for our inspection includes a report and summary of the investigation, pp. 1 through 26,
statements by a number of city employees concerning the investigation, pp. 30 through
43, and recommendations made as a result of this investigation, p. 44. A second
investigation [hereinafter, the "second investigation"] concerns certain allegations
apparently made to the press by an El Paso city council member. With respect to this
second investigation, the information submitted for our inspection includes a summary of
the investigation, pp. 27 through 29, statements from city employees, pp. 47 through 51,
and a summary of these statements including a recommendation from the investigator,
pp. 45 and 46.
You assert that the requested information is excepted from public disclosure by
common-law privacy as incorporated into the Open Records Act by section 3(a)(1).
Specifically, you assert that the release of the information will invade the privacy of
transit department employees who were subjects of the investigation by placing them in a
false light.
False-light invasion of privacy was discussed at length in Open Records Decision
No. 579 (1990), q.v. As noted in that open records decision, the gravamen of a false-
light privacy complaint is not that the information revealed is confidential, but that it is
false. Therefore, an exception to the Open Records Act focused on the confidentiality of
information does not embrace this particular tort doctrine. If, as in the case before us, the
information is uncertain or contradictory, the Open Records Act allows the public to
review the evidence and come to its own conclusions, rather than allowing the
governmental body to determine the weight of the evidence itself.
You further assert that the requested information is excepted from public
disclosure by the so-called informer's privilege as incorporated into the Open Records
Act by section 3(a)(1). This privilege protects the flow of information to the government
by excepting the name of the informer from required public disclosure. Open Records
Decision No. 549 (1990). If the contents of the informer's statement would tend to reveal
the identity of the informer, the privilege protects the statement itself to the extent
necessary to preserve the informer's anonymity. Id.
We must first note that none of the statements taken from employees, pp. 30
through 43 and pp. 45 through 51, allege any wrongdoing or violation of the law. These
statements are therefore not the kind of statements excepted by the informer's privilege.
Open Records Decision No. 515 (1988). However, the report of the first investigation
includes summaries of interviews the investigator had with various transit employees.
Among these summaries is one in which a subordinate employee is identified by a
supervisory employee as the source of certain allegations of possible criminal
wrongdoing. Though these allegations were not substantiated, the identity of the
employee who thus came forward may be withheld from required public disclosure under
the informer's privilege. Certain other information which would tend to identify this
employee may also be withheld. This information is marked on p. 7 of the materials
submitted for our inspection.
Section 3(a)(8) of the Open Records Act excepts information held by a law
enforcement agency from required public disclosure if release of the information "will
unduly interfere with law enforcement and crime prevention." Ex parte Pruitt, 551
S.W.2d 706, 710 (Tex.1977), Open Records Decision No. 531 (1989). Section 3(a)(3) of
the Open Records Act excepts from required public disclosure
information relating to litigation of a criminal or civil nature and
settlement negotiations, to which the state or political subdivision is,
or may be, a party, or to which an officer or employee of the state or
political subdivision, as a consequence of his office or employment,
is or may be a party, that the attorney general or the respective
attorneys of the various political subdivisions has determined should
be withheld from public inspection.
You advise that the police department has concluded its investigation, and has not
tendered the file to the district attorney or county attorney for prosecution. You further
advise that the city council is conducting its own administrative investigation into this
matter. You assert that, as a result of this further investigation, "some of the
irregularities which may turn up may affect the Police Department's recommendation and
may, in fact, result in eventual prosecution, or further investigation, although that is not
foreseen at the moment." This scenario is altogether too speculative and nebulous to
form the basis for exception from public disclosure under section 3(a)(8) as information
the release of which will unduly interfere with law enforcement. Nor does it appear that
criminal litigation is reasonably anticipated.
You advise that the city attorney's office has been contacted by the attorney for
the employee who is the subject of the first investigation, and that that attorney
threatened a lawsuit against the city if any administrative action is taken against his
client. However, you do not advise, nor is it apparent, that any administrative action
against the employee is contemplated. As a result, we have no basis upon which to
conclude that any anticipation of civil litigation is reasonable. Accordingly, the
information is not excepted from public disclosure under section 3(a)(3).
Finally, you assert that the requested information is excepted under the exception
for intra-agency memoranda found in section 3(a)(11). Information is excepted from
required public disclosure under section 3(a)(11) to the extent it consists of advice,
opinion, or recommendation used in the deliberative process. Factual matter, where
severable, is not excepted by section 3(a)(11). See Open Records Decision No. 559
(1990). The information submitted for our inspection primarily consists of a factual
recitation of the investigations undertaken; as such, it is not the kind of information
excepted by section 3(a)(11). Id. Nor do the statements taken from employees consist of
advice, opinion, or recommendation. However, on pp. 44, 45, and 46 of the materials
submitted for our inspection, the investigator makes specific recommendations based on
the results of his investigations. We have marked these recommendations and they may
be withheld.
The balance of the requested information must be released.
SUMMARY
Portions of a police department investigation of a mass transit department which
are within the informer's privilege, or which are recommendations to be used in the
deliberative process are excepted from required public disclosure.
Very truly yours,
Jim Mattox
Attorney General of Texas
Mary Keller
First Assistant Attorney General
Lou McCreary
Executive Assistant Attorney General
Judge Zollie Steakley
Special Assistant Attorney General
Renea Hicks
Special Assistant Attorney General
Rick Gilpin
Chairman, Opinion Committee
Prepared by
John Steiner
Assistant Attorney General